Most litigation that confronts the owners of rental property can be avoided through (1) the use of a properly drafted lease specific to the property and (2) management of the property consistent with that lease agreement. (Management is an issue that will be discussed in a later blog.)
Too often both residential and commerical lessors seek legal assistance with a potential litigation matter stemming from a lease, which is, in a best case scenario, a form lease that may or may not be updated to conform to the law and, in a worst case scenario, a self-written lease. Another issue that arises is the “holdover” tenant who has occupied that property for a significant period of time with no written extension. All of these circumstances create issues when the landlord seeks to raise the rent, evict the tenant ,or otherwise enforce the lease. In the case of mold claims and other property conditions claims or lawsuits, there may be no valid agreement.
A lease and written amendments including extensions of the lease, if applicable, are important to protect both the landlord and the tenant. Seeminly simple provisions such as listing the lessee (the person who is leasing the property) can become a litigation issue. For example, on the lease there are four (4) lessees: Mom, Dad and their two children. Time passes and the Mom and Dad move out of the property, but the two children (now adults) remain. The question arises whether you can you evict the 2 children. The answer to that question depends on how the two children were characterized on the lease.
The duties and obligations of the parties needs to be specifically described. These duties and obligations cover more than who is responisble to pay for, example, roof repairs. Other important provisions such as warranties, e.g. mutual obligation of quiet enjoyment of the premises (see Quiet Enjoyment for Mobilehome Park Residents); covenants such as an obligation to report needed repairs, e.g. mold, should be included in the lease. For a partial list of these provisions and other recommendations, please refer to the power point which is attached. (12-27-15 Presentation (v3).pptx).
Liam Perry is an Associate Attorney at The Loftin Firm. For questions relating to this blog post or any other California real estate, land use, corporate, or estate planning matter, contact The Loftin Firm at 760-814-9649.